The attorney for the woman accused of hitting a Walmart employee is challenging the law used to charge his client.

26-year old Jaquetta Simmons of Batavia is accused of assaulting 70-year old Walmart employee Grace Suozzi on Christmas Eve.

Simmons' Attorney Earl Key filed a motion seeking dismissal of count two of her criminal indictment that alleges assault on a person 65 or older also known as the elder law.

Simmons is the first person in Western New York charged under elder law. She was also charged with one count of assault in the second degree.

Key argued that the elder law violates Simmons' rights under the 5th and 14th amendments in the U.S. Constitution.

Key submitted a motion to the court. One point made in the motion was that the law requires the defendant have knowledge of the victim's age and they would have no way of knowing a victim's age at the time of the assault.

Assistant District Attorney Melissa Cianfrini countered that point saying the law states that the victim only meet the age requirement, not that the defendant has to know the age of the victim.

Keys motion also claimed it violated Simmons' rights, because there is no legitimate state interest in affording a higher level of protection to a class of citizen based solely on age, the statute is unfair and unreasonable because it elevates "an otherwise garden variety assault" from a Class A misdemeanor to a Class D felony and the law is "arbitrary and capricious" in affording a person age 65 and older protection not afforded a person age 64 or younger.

Oral arguments in the case were supposed to begin Thursday, but Key was out sick.

A continuance date has been set for June 27th. The motion will be disscussed on that date.